NAACP Sues State For “Prison Gerrymandering”

The NAACP is suing the state of Connecticut with hopes of changing a practice here—and possibly throughout the country—that disproportionately impacts African-Americanns and Latinos when it comes to counting prisoners for purposes of political representation.

Brad Berry, general counsel for the 109-year-old organization, and state NAACP President Scot X. Esdaile stopped by Yale Law School Thursday to announce the lawsuit filed in the names of five Greater New Haveners: Justin Farmer, Germano Kimbro, Conley Monk Jr., Garry Monk, and Dione Zachery.

The civil rights organization is working with the law school’s Rule of Law Clinic to bring the suit, which has been filed in U.S. District Court in the District of Connecticut.

The lawsuit claims that all five people — residents who have been incarcerated or are related to someone who has been incarcerated — have been harmed by Connecticut’s practice of counting incarcerated people in the places they are locked up instead of the place they reside, for the purposes of redistricting. The suit argues that at least five state House of Representative districts and possibly as many as nine districts — Districts 5, 37, 42, 52, 59, 61, 103, 106, 108 and Senate District 7 — have an inflated amount of political power because of this practice.

The suit calls this practice “prison gerrymandering. The suit alleges that the practice provides a political advantage to the predominantly white communities where many of the state’s prisons are located at the expense of the significantly blacker and browner urban centers where many of the incarcerated come from and return to after they are released.

The NAACP is asking the court to declare the practice an unconstitutional way to calculate reapportionment. Gov. Dannel P. Malloy and Secretary of the State Denise Merrill are the defendants in the lawsuit.

“We’re reviewing it,” said Malloy spokesman Leigh Appleby.

Merrill issued a statement noting that she plays “no role in redistricting” she will take a “close look at the complaint.”

“As Secretary of the State, I have consistently supported legislation that would have ended this practice in Connecticut, and I continue to believe that people who are in prison should be counted where they resided prior to their incarceration, and not in the prison in which they are incarcerated,” she stated. “Prison gerrymandering unfairly inflates the size of some districts at the expense of others, and ending the practice will give a more accurate population count of our urban communities.”

Berry called the complaint the first in what he hopes will be more lawsuits brought by the NAACP challenging prison gerrymandering throughout the country, which he said, “dilutes the electoral and representative strength of communities of color.”

“The lawsuit is a first of it’s kind because it’s the first time the practice of gerrymandering has been challenged in court on a statewide basis,” he said. “Connecticut may feel picked on here but Connecticut shouldn’t feel picked on.”

Ashley Hall, a law student intern in the Rule of Law Clinic at Yale Law School, said a number of states were looked at for a possible suit because the number of states that use the practice. Connecticut, she said, had some particularly stark differences in districts where prisoners are incarcerated and those where they are not. In some districts that are home to prisons in the state, the population would be 15 percent smaller if it did not count its prison population.

“Because their individual votes count for less, individual Plaintiffs, NAACP members, and their fellow residents must invest greater energy to elect representatives of their choice. Plaintiffs in District 97 have over 15% more doors to knock on, voters to call, and mailings to send if they wish to have an equal influence over the political process as residents of District 59. Because of this increased need for resources, their campaign donations go less far,” the complaint notes.

“Because their district is overpopulated in this manner, the influence of individual Plaintiffs’ and NAACP members over their representatives is also diluted. For example, District 97 Representative Al Paolillo has 3,751 more constituents than District 59 Representative Carol Hall. Thus, to serve his full body of constituents, Rep. Paolillo must fully listen and respond to 15% more people despite working with the same level of funding, staff, and hours in the day.”

Hall said an existing a U.S. Supreme Court standard identifies any deviation above 10 percent as a cause for concern that people might not be proportionately represented.

There is some hope on the NAACP’s part that this case will be resolved at the state level and in fact, does not go all the way to the U.S. Supreme Court, which is expected to continue to skew more conservative now that the Trump administration will have another opportunity to appoint a new justice.

“Every case is different,” Berry said of the current state of the country’s highest court. “While there have been some rulings from the Supreme Court that have been disappointing to the civil rights community we are very hopeful that the courts will see the injustice of the practice that we are challenging.

“It seems obvious to us if you ship prisoners upstate — and the state makes the decision where the prisons are located—and then proceeds to use this fiction that they are somehow residents of that area,” that you knowingly engaging in a practice designed to disenfranchise people, Berry added.

Esdaile pointed out that despite the Malloy administration’s “second chance society” efforts to lower the prison population, a disproportionate number of the state inmates are African-American and Latino. Their pre-incarceration address is often in Hartford, Bridgeport, or New Haven, or the immediate suburbs of these major cities.

He also noted that the NAACP has unsuccessfully pressed the Connecticut General Assembly, which decides how to carry our reapportionment, to stop the practice. Hall said that there have been a number of legislative attempts since 2010, including one in 2011, another in 2013, and most recently in 2016.

“The state has not done the right thing on this particular issue,” Esdaile said. “Our only course of action is to take this to the courts.”

Plaintiff Kimbro, a formerly incarcerated New Havener, equated prison gerrymandering with voter suppression in its effect.

“We’re asking for fair representation for our community, for our loved ones and family who have been incarcerated,” said Kimbro, who now is a criminal justice reform advocate. “We’re coming back here with little to no resources to establish ourselves, nor do we get advocated for whle we’re incarcerated for the things we need to re-establish ourselves.”

He said he challenges all the Ivy League law schools with clinics to take up the issue of prison gerrymandering in other states.

“It’s great that Yale has stepped up to the plate and recognized this issue but this is not a New Haven issue,” he said. “It’s something that is going on across the country.”

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posted by: 1644 on June 28, 2018 3:50pm

If where someone is residing isn’t actually where they are residing, does the NAACP believe New Haven shouldn’t have college students counted in its population? College students are often more temporary in their residence than prisoners, yet they are counted for census purposes, and, therefore, in funding and apportionment, as being resident in the town of their school. New Haven may lose a lot if the NAACP is successful (which I doubt).

posted by: 1644 on June 28, 2018 4:04pm

“Plaintiffs in District 97 have over 15% more doors to knock on, voters to call, and mailings to send….” If we are to base apportionment on voters, or those eligible to vote, we would not count aliens. Some right-wingers in Texas have been urging apportionment based only on those eligible to vote, excluding the many aliens, most illegal, in poorer districts. Some see the addition of a citizenship question to the next census as preparation for the exclusion of aliens from apportionment decisions. New Haven is a huge beneficiary of the policy of counting people wherever they happen to be at the moment: in a dorm, under a bridge, or living “under the radar” as an illegal alien.

posted by: FacChec on June 28, 2018 4:24pm

The prison population has been counted for the purpose of redistricting for at least 100 years now, so where has the NA double AP been? Suddenly in 2018 this becomes an issue for The NA double AP to chase down the rabbit hole.

Since the home address of prisoners is difficult to confirm, since prisoners rarely provide their true names and last place of residence. If they are not counted in place chances are they would not be accurately be counted. More importantly however, is the under-count of minorities, Hispanics and Latinos in cities like New Haven and Hartford. NAACP, get to work on the real disproportional count in CT. and the Nation.

This law suit is a non starter…DOA…. Stop wasting our time for your 15 seconds of fame.

posted by: THREEFIFTHS on June 28, 2018 8:12pm

posted by: 1644 on June 28, 2018 4:50pm

If where someone is residing isn’t actually where they are residing, does the NAACP believe New Haven shouldn’t have college students counted in its population? College students are often more temporary in their residence than prisoners, yet they are counted for census purposes, and, therefore, in funding and apportionment, as being resident in the town of their school. New Haven may lose a lot if the NAACP is successful (which I doubt).

The prison miscount was a key part of the discussion about the 2010 Census, and the Census Bureau agreed to publish prison count data earlier than in the past, in order to assist states and counties with reallocating or removing incarcerated populations during the redistricting process.Two states, Maryland and New York, passed legislation to end prison-based gerrymandering and count incarcerated people at home for redistricting purposes, starting immediately. New York’s law was upheld by the New York Supreme Court, and Maryland’s law was upheld by the Supreme Court of the United States.

posted by: Samuel T. Ross-Lee on June 28, 2018 11:46pm

Comparing voting college students with non-voting prisioners is prima facie silly.

@FacChec,

Are you REALLY trying to argue that a right or wrong is determined by the length of time that a realities has existed? Are you proud of that measure of right and wrong? If you are, you shouldn’t be.

The Rev. Mr. Samuel T. Ross-Lee

posted by: FacChec on June 29, 2018 9:46am

@Samuel T. Ross-Lee on June 29, 2018 12:46am

Rev. Mr. Samuel T. Ross-Lee: your question: “Facchec Are you REALLY trying to argue that a right or wrong is determined by the length of time that a realities has existed? ”

Answer: Not at all, I am saying that the precedent had long been established and accepted as law by the Census Bureau.

Question 2: Are you proud of that measure of right and wrong?

Answer: I do not see the accepted standard as a measure of right or wrong, I see the issue a difficult to count prisoners in their home city/state. The New Haven Longevity program announced that prisoners are just dropped off on the New Haven green because they had not home address to call home.

See the following thread: One of WRWG’s newest initiatives is the Welcome Home Project, in which members make sure that there is always someone waiting at the police department to greet women when they are first dropped off in New Haven after being released from prison. Smoyer said that women are often dropped off by themselves at five or six in the morning, and do not know where to turn once they find themselves no longer behind bars.

Smoyer also said that formerly incarcerated women face unique challenges in finding housing upon returning to New Haven. She said that 75 percent of women returning from prison to New Haven experience homelessness at one point in their lives.

posted by: robn on June 29, 2018 10:08am

Its an interesting point. And I agree with REVSTRL about students and prisoners being apples and oranges WRT this issue.

posted by: challenge on June 29, 2018 11:23am

All I can say it’s about time. It should be criminal that a district gains voting power from those whose rights to vote have been revoked. Sorry naysayers. This will be a win. This fight has been given little media attention yet has been fought and won on a national level. Thus far several states have already ended gerrymandering.Connecticut is known to be a late bloomer when it comes to correcting certain wrongs.

posted by: Samuel T. Ross-Lee on June 29, 2018 11:46am

@FacChec,

“Answer: Not at all, I am saying that the precedent had long been established and accepted as law by the Census Bureau.”

Certainly, you are not clueless about the number of injustices that “had long been established and accepted law…” before they were abolished, right?

Rev. Ross-Lee

posted by: 1644 on June 30, 2018 1:21pm

3/5s interesting cases, which say that legislatures may reallocate prisoners from their incarcerated place of residence to their domicile or prior place of residence. They do not, as this case does, say the legislature must reallocate prisoners.

As for students vs. prisoners, yer, the court rejected that analogy, although, to use the apples and organges metaphor, they are both edible fruits. When I was a student in residential schools, no one asked me for my domicile when the census came around. I was counted at my school, even though I, like a prisoner, had little interaction with the town and required little in services of it. When I did reach voting age, about four years after first going away, I registered at my parents’ address, and voted there. Yet, for census purposes, I was counted where my school was.

I also find the court’s emphasis on voting age population interesting. The census, and congressional apportionment, has never distinguished between those of voting age and those below it. Voting rights didn’t matter, except for those in involuntary servitude, who were, of course, 3/5s. (Women, kids, the poor, convicted felons, could not vote, but were counted as whole persons.)

posted by: robn on June 30, 2018 9:34pm

1644, Funny quip about apples and oranges but they truly are different situations.

Students have a de facto choice about where they register and whether or not they choose to vote.

Incarcerated are denied both the right to vote and the right to decide where they are registered.

posted by: 1644 on July 1, 2018 12:29pm

rob: Of course they are different, but they are also similar. As for students being able to register to vote, only those over 18 (17 in some cases) can vote. A lot of college freshmen are under 18, and most prep school students are. Should the thousand students at Choate not be counted as living in Wallingford? What of Simsbury and Hotchkiss students living in Simsbury? BTW, Republicans in New Hampshire really want to make Dartmouth students vote in their home states, rather than skewing the first in the nation primary left.